Construction Law News Blog

Showing 15 posts in Federal and State Procurement / Bid Disputes.

New Ohio Transportation Bill Allows Public-Private Partnerships And Limited Design-Build Procurement

Ohio has joined a growing number of states turning to public – private partnerships, or PPPs, to help fund much needed infrastructure projects.  On March 30, Ohio Governor John Kasich signed a new $6.8 billion transportation bill into law. House Bill 114 allows the Ohio Department of Transportation to enter agreements with private entities to develop, finance, maintain, and operate transportation infrastructure.    Read More ›

Contractor Refused Contract Due to Past Litigation

The legal pendulum continues to swing further towards public owners in Ohio. In Triton Services, Inc. v. Talawanda City School District, 2011 Ohio 667 (Ohio App. 12th. Dist. Feb. 14, 2011) the Court held that a school district can reject an apparent low bid if the bidder is perceived by the public entity as litigious. Read More ›

Economic Loss Doctrine Alive and Well in Indiana

The construction industry extensively relies upon the use of written contracts to establish duties and to allocate risk. When defects occur on a project, a party's ability to recover is governed by the existence of its contractual relationships, as well as the type of damages it seeks to collect. In Indiana, where the aggrieved party’s losses are solely economic in nature, it may look to recover only from those with whom it has contracted. Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010). Read More ›

Buy American Requirements Under the Federal American Recovery and Reinvestment Act of 2009 Now Being Implemented on Kentucky Projects

The “Buy American” obligations of the Federal American Recovery and Reinvestment Act of 2009 (“ARRA”) have reached Kentucky construction projects. Following the ARRA’s passage in February 2009, implementation could not flow until regulations were adopted by the numerous federal agencies issuing ARRA funds. Some agencies did not issue regulations until year end or early 2010. For instance, the U.S. Department of Energy issued guidelines effective December 17, 2009. The Department of Housing and Urban Development guidelines for community development block grant recovery funds were effective February 16, 2010. Now construction projects in Kentucky being funded through federal agency “stimulus” monies are facing implementation of the ARRA’s “Buy American” requirements, in addition to the already existing Buy American Act obligations. Read More ›

“'Successful Party' fee-shifting provision does not authorize recovery of fees in absence of a judgment"

In Indiana, in the absence of a statute or contractual provision authorizing an award of attorney's fees, the parties are expected to bear their own legal costs. As a result, many construction contracts include a fee-shifting provision which may provide, for example, that: "If either party sues the other to collect damages arising out of a breach of this agreement, the successful party shall be entitled to the recovery of its reasonable costs and attorney fees." Because so many cases are ultimately resolved through informal settlement negotiations or at mediation however, one issue that may arise as the parties discuss and finalize settlement is whether the party recovering compensation from the other is a "successful party", such that it would also be entitled to the recovery of its attorney's fees. The Indiana Court of Appeals recently resolved this issue in Delgado v. Broyles, where the purchasers of a parcel of property reached a settlement with the seller prior to trial and then sought an order from the court for the recovery of their attorney's fees on the basis that they were "successful." In such a case, the court determined that recovery of attorney's fees is improper. Read More ›

West Virginia Federal Court Reaffirms Meaning Of “pay if paid” Clause

In Ziegenfuss Drilling, Inc. v. Frontier-Kemper Constructors, Inc., the United States District Court for the Southern District of West Virginia, in Charleston, West Virginia, issued an opinion on August 20, 2009, holding that a pay if paid clause did not allow a general contractor to refuse payment to a subcontractor even if not paid by the owner. Read More ›

Federal Appellate Court Concludes Unreasonable Delay Equates to Material Breach of Construction Contract

When does a delay in performance become so unreasonable as to constitute a material breach of the contract and excuse future performance by the non-breaching party? The United States Court of Appeals for the Seventh Circuit recently addressed what evidence should be examined to determine if a delay in a party’s performance equates to a material breach in the absence of specific dates for performance. International Production Specialists, Inc. v. Schwing America, Inc., No. 07-3632, 2009 Westlaw 276 7143 (7th Cir. September 2, 2009) Read More ›

Developers in Middle Tennessee...

Developers in Middle Tennessee are now forced to deal with yet another argument from those withholding payment. Middle Tennessee condominium purchasers, following upon a number of similar lawsuits in Florida in the past two (2) years, have begun to assert a new argument when attempting to nullify their purchase of a condominium - the failure of the developer to comply with the "Interstate Land Sales Full Disclosure Act" ("ILSA"). See 15 U.S.C. Section 1701, et. seq. (2009). Read More ›

American Recovery and Reinvestment Act - Weatherization Programs Grant Ohio More Than $100 Million

U.S. Department of Energy Secretary announced that the Department of Energy is providing more than $453 million in Recovery Act funding to expand weatherization assistance programs in 15 additional states, including Ohio. These funds will help Ohio achieve its goal of weatherizing homes, lowering energy costs for low-income families, reducing greenhouse gas emissions, and creating green jobs across the country.  Read More ›

A "Stark" Reality on Claim Notice Provisions in Indiana

Although states vary widely in their respective treatment of contractual claim notice provisions and how rigidly they will be enforced, one Indiana court has made it clear that such provisions are to be strictly followed. Indiana contractors wishing to have their claims for additional costs considered and ultimately paid should be wary of, and prepared to comply with, their contract's notice requirements regardless of how burdensome they believe them to be. Read More ›

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Attorney Spotlight

C. Michael Shull, III focuses his practice on construction law and litigation. Michael's client representations range from casinos and ENR Top 400 contractors to design firms and subcontractors.

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